Decision of the Court of Appeal

At the 1959 trial, the Crown's case rested on four main evidentiary "pillars" as follows:

forensic evidence used by the Crown to establish mat Lynne Harper died before 7:45 p.m. on the night she disappeared;

eyewitness evidence as to where and when Steven Truscott was seen on me evening mat Lynne Harper disappeared, which was used by the Crown to establish that Steven must have taken Lynne into the wooded area where her body was later found;

evidence of Steven Truscott's post-offence conduct, which the Crown argued was indicative of guilt; and

evidence that lesions observed on Steven Truscott's penis at the time of his arrest were either caused or aggravated by forced intercourse.

The Court of Appeal concluded that all four of these pillars would be significantly weakened, if not entirely destroyed, by fresh evidence if a new trial were held. The Court's analysis of each of these pillars and the related fresh evidence, stated as succinctly as possible, is as follows.

(i) The First Pillar Evidence Related to the Time of Lynne Harper's Death

At trial, the Crown's memory was that Lynne Harper had died before 8 p.m. on the night she disappeared. This theory was crucial to the Crown's case because, at about 8 p.m. that night, Steven Truscott returned to the school grounds, where he was seen by a number of people. There was never any suggestion that Mr. Truscott could have committed the murder at any time after 8 p.m.

Therefore, based on the Crown's theory, if Lynne had died after 8 p.m., Steven could not have been the killer. The Court of Appeal explained as follows:

If Lynne was killed some time after the appellant returned to the school grounds at about 8 p.m., the Crown's theory collapsed. 1

The Court emphasized how important the time-of-death evidence was to the Crown's case:

The importance of the evidence of Lynne Harper's time of death to the Crown's case can hardly be overstated. 2

At trial, the Crown had relied heavily on the evidence of Dr. Penistan, a pathologist who performed the autopsy on Lynne Harper's body. Dr. Penistan testified that, based on the contents of Lynne's stomach, the extent of decomposition, and the degree of rigor mortis, he believed that she died before 7:45 p.m. on the evening she disappeared. 3

The Court of Appeal considered Dr. Penistan's trial testimony in light of new evidence from pathologists and a gastroenterologist - one of whom was a Crown witness - all of whom testified that Dr. Penistan's opinion was unjustified. The Court also considered additional contemporaneous documents, most notably various versions of Dr. Penistan's autopsy report, which varied widely in their respective estimates as to the time of death, that may not have been available to defence counsel at the time of the original trial. 4 Based on the new evidence, the Court determined that Dr. Penistan's opinion was entirely unreliable. The Court stated:

[T]here is no scientific justification for Dr. Penistan's opinion that Lynne Harper must have died between 7 and 7:45 p.m. on June 9. 5

The Court concluded that, if a new trial were held, Dr. Penistan's opinion would likely be rejected by the trier of fact:

[T]he defence could have established that Dr. Penistan's opinion had ranged from an initial assessment placing the time of death at 12:45 a.m. on June 10, to a second estimate placing the time of death at least some four hours later on June 10, and finally, to a third opinion placing the time of death at between 7:15 and 7:45 p.m. on June 9, several hours earlier than either of his prior estimates. Absent some plausible explanation for these variations, it seems unlikely that Dr. Penistan's opinion could be accepted as reliable by a reasonable trier of fact. Indeed, the nature of the changes in his opinion leaves Dr. Penistan's evidence reasonably open to the allegation that his opinion shifted to coincide with the Crown's case against the appellant. 6

On this basis alone, the Court determined that Mr. Truscott's conviction could not stand.
Having decided that the conviction must be quashed, the Court then went on to consider the three remaining pillars of the Crown's case as well as certain additional evidence in order to determine what the probable result would be if a new trial could be held.

(ii) The Second Pillar: Eyewitness Evidence as to Where and When Steven Truscott Was Seen on the
Evening of June 9

As mentioned above, the Crown's theory at trial was that Steven Truscott took Lynne Harper along the County Road and then into the wooded area, known as Lawson's Bush, where her body was ultimately found. The defence's theory, by contrast, was that Steven took Lynne on the County Road, past Lawson's Bush, to the junction with a local highway. The defence's theory was further that Steven left Lynne at the highway junction, saw her get into a car that had pulled over at the side of the highway, and returned alone down the County Road.

In this regard, a large body of eyewitness testimony was led at trial, much of it conflicting, as to who saw Steven and Lynne - and where and when - on the evening that Lynne disappeared. The Court of Appeal considered all of the evidence relating both to the Crown's theory and to the defence theory. This included testimony from the trial, police notes and witness statements from the original police investigation, as well as additional evidence (such as visibility tests) that corroborated or contradicted certain aspects of the eyewitness testimony.

Based on all of the evidence, the Court concluded that it was unlikely that a jury would accept the Crown's version of the eyewitness evidence - namely, that Steven Truscott rode his bicycle with Lynne Harper north on the County Road and turned onto the tractor trail, leading to Lawson's Bush. Rather, the Court concluded that the jury was more likely to accept the defence's version of these accounts - namely, that Steven rode his bicycle with Lynne Harper north on the County Road, past Lawson's Bush, up to the junction with Highway 8, where he left her, and then returned alone south on the County Road. While the Court did not conclude that a jury would necessarily accept the defence's theory of that evidence, it did say that the defence theory "fit comfortably" with the totality of the material before the Court:

We are satisfied having regard to the material placed before us, that it is unlikely that a jury would be convinced of the Crown's version of the County Road evidence. The totality of the record suggests significant flaws in each factual cornerstone of that theory. While we do not go so far as to say that any jury would reasonably be convinced of the truth of the appellant's theory of the County Road evidence, we do say that the archival material adds significant force to that theory. The defence theory fits comfortably with the totality of the material as we now have it. It is reasonably arguable that the defence theory is at least as tenable as, if not more tenable than, the Crown's theory of the County Road evidence. 7

(iii) The Third Pillar Post-Offence Conduct

At trial, the Crown argued that Steven Truscott's conduct after Lynne's disappearance was indicative of his guilt. This third pillar of the Crown's case consisted of three allegations:

that Steven asked his friend, Arnold George, to lie to the police about where and when he had seen Steven on the evening that Lynne disappeared;

that Steven must have lied to the police about seeing Lynne get into a car at the . junction of the County Road and Highway 8, because it was physically impossible for him to have seen her getting into a car from the spot where he claimed to have been standing; and

that Steven had made certain inculpatory statements to his friends following Lynne's disappearance.

The Court of Appeal found that all of these allegations were now open to question.

First, the Court was of the view that the veracity of parts of the evidence of Arnold George was "open to serious question"8 and that prior inconsistent statements made by him had "powerful impeachment potential" and could be used by the defence at a hypothetical new trial to undermine his trial testimony that Steven had asked him to lie to the police. 9

Second, the Court found that, based on new visibility tests and related evidence, it would no longer be open to the Crown to argue (as it did at trial) that it was physically impossible for Steven to have seen Lynne getting into a car, based on where he said he was standing at the time. 10

Third, the Court found that evidence of one of the allegedly inculpatory statements made by Steven would be "open to serious question" at a hypothetical new trial. 11

With respect to the order allegedly inculpatory statements, the Court found that they continued to provide "some limited value as admissions for the Crown" in that they "support the contention that [Steven] was not being candid in describing his whereabouts in his various statements to the police in the days following Lynne's disappearance". 12

(iv) The Fourth Pillar The Penis Lesions Evidence

The fourth pillar of the Crown's case at trial related to lesions observed on Steven Truscott's penis at the time of his arrest. Medical evidence was led that the lesions were consistent with his having raped Lynne Harper. At the 1966 Reference to the Supreme Court, that evidence was discredited by the defence, and the Crown varied its theory so as to allege that the lesions may have been aggravated (as opposed to caused) by a sexual assault.

With respect to this pillar of the Crown's case, after considering fresh expert evidence, the Court of Appeal concluded that the pillar had been effectively destroyed. The Court stated:

At a hypothetical new trial, the penis lesions evidence would have so little probative value that it could potentially be excluded by the trial judge on the basis that its prejudicial potential outweighs its probative value. 13

And similarly:

As it currently stands, the penis lesions evidence is close to no evidence at all. . . . [T]he penis lesions evidence as presently constituted would do little, if anything, to advance the Crown's case at a hypothetical new trial. 14

(v) Other Evidence Considered by the Court of Appeal

After reviewing the four pillars of the Crown's case, the Court went on to consider evidence of Lynne Harper's mood on the evening that she disappeared and her general willingness to hitchhike, which was relied upon by the defence in support of its theory that Lynne had got into a car at the junction of Highway 8 and the County Road. 15 Among other things, the Court considered a witness statement taken by the police shortly after Lynne disappeared. According to this statement, on the evening of her disappearance, Lynne had said that she did not want to go home because her mother was angry with her. The Court of Appeal held that, at a hypothetical new trial, the defence could have relied on the witness statement (or on first-hand testimony from the person who made the statement) to support the defence's assertion that Lynne wanted to delay her return home the night of her disappearance. This, in turn, could offer support for the defence's theory that Lynne had hitchhiked that evening after Steven left her at the junction of the County Road and Highway 8. 16

The Court also considered evidence of the crime scene which it said "seems out of place with the actions of a fourteen-year-old schoolboy". 17 The Court stated:

While far from conclusive, that gruesome picture - no struggle, the use of her blouse as a garrotte and sex while she was dead or dying - seems out of place with the actions of a fourteen-year-old schoolboy whose sexual advances were rebuffed by a twelve-year-old classmate; rather, this picture would appear to be the work of a sexual deviant for whom sex with a dead or dying child was somehow capable of providing stimulation. 18

The Court also noted another "puzzling" feature of the crime scene - which was evidence of injuries to Lynne's left leg and foot indicating that she was barefoot when she entered the bush. The Court said:

The various injuries to Lynne's left leg and foot and the mud on the top of her right foot suggest that Lynne did not enter the woods voluntarily, as the Crown would have it, but rather, as the appellant contends, that she was dragged in a downward facing posture, first over barbed wire fence and then for some distance into the woods before being taken to the place where she was strangled and sexually assaulted.

In oral argument on this Reference, the Crown was questioned about the injuries to Lynne's left leg and foot and asked whether there were some theory, other than the one put forward by the appellant, that might account for these injuries and the manner in which they were sustained. No cogent answer was forthcoming. 19

The Court Of Appeal's Conclusion

Based on its analysis of the evidence against Mr. Truscott, the Court of Appeal concluded that his conviction must be quashed. In considering the appropriate remedy, the Court considered a number of factors, including the following:

the fresh evidence satisfied the Court that Mr. Truscott's conviction was a miscarriage of justice;

that fact that Mr. Truscott had maintained his innocence since the night of Lynne Harper's disappearance and had "lived under the burden of that miscarriage of justice for almost 50 years";

the Court of Appeal was the first judicial body to have before it a substantial amount of material that could have assisted Mr. Truscott's counsel in making full answer and defence at his trial and on the Reference to the Supreme Court;

the fact that there would "never be another forum in a better position to make an assessment of Mr. Truscott's culpability based on a complete record";

the Court's assessment of the evidence led it to conclude that it was clearly more probably than not that Mr. Truscott would be acquitted, if it were possible to hold a new trial; and

the fact that it would be unfair to order a new trial, because a new trial would never be held, thereby "leaving in place the stigma that would accompany being the subject of an unresolved allegation of a crime as serious as this one". 20

Accordingly, in the highly unusual circumstances of this case, the Court entered an acquittal.

It is against this factual backdrop that I turn to consider the question of compensation.